Guo v. Boente

15-3925
Guo v. Boente
BIA
Poczter, IJ
A205 226 427
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
7th day of February, two thousand seventeen.
PRESENT:
JOHN M. WALKER, JR.,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
JUN GUO,
Petitioner,
v. 15-3925
NAC
DANA J. BOENTE, ACTING UNITED
STATES ATTORNEY GENERAL,
Respondent.*
_____________________________________
FOR PETITIONER: Zhong Yue Zhang, Flushing, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; John W.
Blakeley, Assistant Director;
Elizabeth K. Fitzgerald-Sambou,
Trial Attorney, Office of
* The Clerk of Court is respectfully requested to amend the caption
to conform to the above.
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Jun Guo, a native and citizen of the People’s
Republic of China, seeks review of the BIA’s November 30, 2015
decision affirming an Immigration Judge’s (“IJ”) August 19,
2014 denial of Guo’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Jun Guo, No. A205 226 427 (B.I.A. Nov. 30, 2015),
aff’g No. A205 226 427 (Immig. Ct. N.Y. City Aug. 19, 2014).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed both
the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432
F.3d 391, 394 (2d Cir. 2005). The applicable standards of
review are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu
Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
2
For asylum applications like Guo’s, governed by the REAL
ID Act, the IJ may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on, inter alia, an
asylum applicant’s “demeanor, candor, or responsiveness,” and
inconsistencies in his or his witness’ statements. 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
defer . . . to an IJ’s credibility determination unless, from
the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin, 534 F.3d at 167. As discussed below,
the IJ’s adverse credibility determination here rests on
substantial evidence.
The IJ reasonably relied on inconsistencies between Guo’s
testimony and his wife’s letter concerning his detention, an
event central to his claim of persecution. Id. at 166-67; Xian
Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir.
2006) (“[A] material inconsistency in an aspect of [an
applicant’s] story that served as an example of the very
persecution from which he sought asylum . . . afforded
substantial evidence to support the adverse credibility
finding.” (citations and internal quotation marks omitted)).
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Guo testified that he was detained for six days, during which
he was beaten and interrogated. When asked why his wife’s
letter omitted the detention and beating, Guo provided a series
of inconsistent responses: she was aware of his detention but
omitted it because it was “useless” information; she was unaware
of his detention; she knew about his detention but did not know
he was seeking asylum; and although she knew everything that
had happened, it was “her letter” and he had just told her to
“write down everything [she] kn[e]w.” A.R. 120-22. The IJ was
not required to credit Guo’s shifting explanations, which did
not account for why his wife would omit the basis of his
persecution claim. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
Cir. 2005) (“A petitioner must do more than offer a plausible
explanation for his inconsistent statements to secure relief;
he must demonstrate that a reasonable fact-finder would be
compelled to credit his testimony.” (citations and internal
quotation marks omitted)).
Guo concedes this omission, but faults the IJ for failing
to consider or give weight to his mother’s letter, which
corroborated his detention. The IJ explicitly acknowledged
Guo’s mother’s letter but gave it diminished weight, as the IJ
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was entitled to do, because it omitted other information
important to Guo’s persecution claim, i.e., that officials
continued to question Guo’s wife concerning Guo years after his
detention. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 342 (2d Cir. 2006) (holding that the weight accorded to
an applicant’s evidence “lies largely within the discretion”
of the IJ (alteration and internal quotation marks omitted)).
The IJ also reasonably rested her adverse credibility
determination on inconsistencies concerning Guo’s
confrontation with his company’s director. In his
application, Guo asserted that he and two colleagues confronted
the company’s leaders about a housing list. On cross
examination, Guo testified that he confronted the company’s
director alone. The IJ was not required to credit Guo’s
explanation that he did not notice this mistake in his
application. Guo signed the application, twice confirmed that
he was aware of its contents, and identified a different error
in the application. See 8 C.F.R § 1208.3(c)(2) (“The
applicant’s signature establishes a presumption that the
applicant is aware of the contents of the application.”);
Majidi, 430 F.3d at 80-81.
5
Guo’s termination notice further undermined his
credibility. Guo testified that he was terminated in February
2008, but the termination notice he produced was dated December
2013. The IJ reasonably rejected his explanations. His first
explanation, that in 2013 he asked the director who fired him
to provide proof of his termination, was called into question
by the fact that he came to the United States in 2011. When
confronted with that point, Guo immediately changed his
testimony to say that his wife obtained the notice. The IJ
reasonably rejected Guo’s shifting explanations because they
introduced further inconsistency. See Majidi, 430 F.3d at
80-81.
The adverse credibility determination is further bolstered
by the IJ’s findings regarding Guo’s demeanor, to which we give
particular deference. See id. at 81 n.1. The IJ observed
that, while Guo “testified fairly smoothly” on direct regarding
information in his application, his testimony became “highly
evasive” and unresponsive on cross examination. A.R. 59.
“Evasiveness is, of course, one of the many outward signs a
fact-finder may consider in evaluating demeanor and in making
an assessment of credibility.” Tu Lin v. Gonzales, 446 F.3d
6
395, 400 (2d Cir. 2006). And the record supports the IJ’s
finding. For example, when asked whether his intent was to
return to China when he first came to the United States, Guo
repeatedly avoided answering the question, stating alternately
that he “came here to travel,” that he “consulted [an] attorney
about . . . whether [he] could seek protection[] here,” and that
he “did not come here [to seek] asylum.” A.R. 42-43.
Given the multiple inconsistencies and Guo’s demeanor, it
cannot be said “that no reasonable fact-finder could make such
an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
Because all three forms of relief are based on the same factual
predicate, the adverse credibility determination is
dispositive of asylum, withholding of removal, and CAT relief.
See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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